Findings Of Fact On June 5, 1985, the Department filed an administrative complaint against the Petitioner. That complaint alleged Petitioner had violated seven subsections of Section 458.331, Florida Statutes. The matter was not referred to the Division of Administrative Hearings for formal proceedings until July 10, 1987. The record does not explain the time delay which elapsed between the time of filing the administrative complaint and the time the matter was referred for hearing. On September 7, 1988, a formal hearing was conducted in connection with the matter. On November 16, 1988, a recommended order was entered which recommended the dismissal of all counts of the complaint. The basis for the recommendation was the Department's failure to prove by clear and convincing evidence the facts constituting the alleged violations. A ruling on a preliminary motion had determined that the Department was not entitled to compel the licensee to testify or provide evidence against himself. On February 18, 1989, the Board of Medicine (Board) entered a Final Order, DOAH Case No. 87-2896, which approved and adopted the recommended order, both as to the findings of fact and conclusions of law. The Board rejected all exceptions which had been filed by the Department. Petitioner is a "prevailing small business party" and is entitled to seek attorneys fees pursuant to Section 57.111, Florida Statutes. Petitioner has not sought fees on another basis. Petitioner filed his petition for fees within 60 days of becoming a prevailing party and has, therefore, timely asserted his claim for fees. The attorney fees and costs which Petitioner seeks are reasonable for the fees and costs incurred for all preparations in these proceedings (prehearing stipulation). The amount claimed to be due Petitioner exceeds $15,000. There are no special circumstances which would make the award of attorney's fees and costs unjust (prehearing stipulation). The administrative complaint which is the subject of this case was filed following a probable cause panel meeting which occurred on May 23, 1985. Present at that meeting were panel members Bass and Feinstein. Information presented to the members included an investigative report. Both members acknowledged that they had thoroughly reviewed the materials related to the allegations against Petitioner. After reviewing the materials, the probable cause panel recommended the filing of the administrative complaint. Included with the investigative report were the following documents: a uniform complaint form, dated October 8, 1984, based upon a letter, dated October 2, 1984, received from the Food and Drug Administration; a copy of a letter dated October 23, 1984, addressed to Petitioner from the investigator informing Petitioner of the pending investigation; a copy of a letter from an attorney on behalf of Petitioner (which letter referenced the Fountain of Life Medical Centers and suggested Petitioner had valid patient/doctor relationships with persons being treated); another letter from the attorney for Petitioner referring to procaine and identifying Petitioner as the staff physician for the clinic under investigation; and an affidavit from an investigator who had attempted to make an appointment to see a doctor at the clinic. The information noted in the investigative report contained alleged admissions made by Petitioner to the investigator. The purported admissions connected Petitioner to the Fountain of Life Medical Centers and the dispensing of the substance, procaine. The investigative file did not contain information as to whether procaine is a legend drug, the identity of any person who had allegedly received the substance from the Petitioner, copies of any medical records related to the dispensing of the substance, or any confirmation that the dispensing of the substance in the manner alleged, if true, would fall below the prevailing standard of practice observed by the medical community. The investigation conducted in this case was inadequate to fully clarify the factual issues prior to the probable cause hearing. The materials submitted to the probable cause panel did, however, create a reasonable basis for the panel's determination for reasons hereinafter discussed in the Conclusion of Law. Counsel for the Department was not present at the probable cause meeting during the discussion of the Petitioner's case. Legal opinions regarding the sufficiency of the factual materials or admissibility of the evidence related to the claims were not sought by the panel nor rendered unsolicited by the counsel for the Board (who was present).
The Issue The issue in this case is whether Respondent, Joe L. Wheeler, committed the violations alleged in an Administrative Complaint issued by Petitioner, the Department of Law Enforcement, Criminal Justice Standards and Training Commission, and dated November 16, 2005, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Commission is charged with the responsibility for, among other things, certifying individuals for employment or appointment as a law enforcement officer and investigating complaints against individuals holding certificates as law enforcement officers in the State of Florida, pursuant to Section 943.3195, Florida Statutes. At the times pertinent to this matter, Respondent, Joe L. Wheeler, was certified by the Commission as a law enforcement officer, having been issued Law Enforcement Certificate Number 169035 on December 11, 1996. He was employed with the Hollywood Police Department. At the times relevant to this matter, Mr. Wheeler was married to Donna Wilson-Wheeler. They were married in April 1996. They divorced in November 2004, after the events at issue in this matter. On June 11, 2003, Mr. Wheeler and Ms. Wilson-Wheeler lived together, along with four children: Vaughn Mitchell, who was 17 years of age at that time; S.M, who was 13 years of age at that time; J.W., who was five years of age at that time; and Jo. W., who was 12 years of age at that time. Vaughn Mitchell and S.M. are Ms. Wilson-Wheeler's sons from a previous marriage; J.W. is the daughter of Mr. Wheeler and Ms. Wilson-Wheeler; and Jo. W. is Mr. Wheeler's son. During the evening of June 11, 2003, Mr. Wheeler, Ms. Wilson-Wheeler, and all four children were in the family residence. At approximately 7:00 p.m., an argument began between Mr. Wheeler and Ms. Wilson-Wheeler in a downstairs room. Following the verbal altercation, which was over a video camera that Ms. Wilson-Wheeler had purchased for Mr. Wheeler, Mr. Wheeler went upstairs. Shortly after Mr. Wheeler went upstairs, Ms. Wilson- Wheeler, concerned about whether Mr. Wheeler would take her cellular telephone out of her purse, which she had left in the master bedroom, also went upstairs. When Ms. Wilson-Wheeler walked into the master bedroom, not finding her cellular phone in her purse, she confronted Mr. Wheeler, who was in the master bedroom bathroom. Ms. Wilson-Wheeler accused Mr. Wheeler of taking her cellular phone, which Mr. Wheeler denied. Ms. Wilson-Wheeler continued to accuse Mr. Wheeler, demanding that he return the phone. Both were angry and the "discussion" was heated. Ms. Wilson-Wheeler, angry over her husband's denials, went to a desk in the bedroom and picked up a camera used by Mr. Wheeler and offered it in exchange for her phone. Mr. Wheeler angrily demanded she give him the camera, and she complied because she "knew now that he was ticked off." Ms. Wilson-Wheeler told Mr. Wheeler that she would just have the telephone service provider turn her phone off and went to retrieve her purse from the bed. As she did so, Mr. Wheeler said, "Here's your phone in the bathroom where you left it." Ms. Wilson-Wheeler went to the bathroom to retrieve the phone. Believing that she had not left the phone there, she told Mr. Wheeler, "You took it out." She also told him that she guessed he was still angry about the video camera. Mr. Wheeler replied, "Fuck you, fuck you" and told her he could buy his own camera, to which Ms. Wilson-Wheeler said, "Good." As the verbal sparing continued, Mr. Wheeler lost control and grabbed Ms. Wilson-Wheeler, who was facing the bathroom sink, by the neck with his left hand and punched her hard in the head with his right fist. His grip on her throat was tight enough to restrict her breathing. After punching her, Mr. Wheeler kicked Ms. Wilson- Wheeler's legs out from under her, causing her to fall to the bathroom floor. Mr. Wheeler pinned Ms. Wilson-Wheeler on the floor with his knee and, while cursing her, continued to punch her in the face and head, causing her head to strike the bathroom floor. Mr. Wheeler continued to choke Ms. Wilson-Wheeler while he hit her, causing her to have difficulty breathing. She began to fear that she would lose consciousness. The children, who were downstairs when Mr. Wheeler first struck Ms. Wilson-Wheeler and heard the commotion, ran upstairs to see what was happening. Vaughn came into the bathroom and, as Mr. Wheeler held his fist above Ms. Wilson- Wheeler ready to strike her again, he grabbed Mr. Wheeler's fist. Jo. W. also entered the bathroom yelling at his father to stop. S.M. entered the room, pleading with his mother to get up. Mr. Wheeler, when Vaughn grabbed him, got up off the floor and, with Vaughn attempting to restrain him, told Vaughn he would not hurt Ms. Wilson-Wheeler anymore. Mr. Wheeler's attack on Ms. Wilson-Wheeler caused visible bruises and swelling to her face, right arm, and left leg. She also had scratches on her neck, arm, and legs as result of the battery. Ms. Wilson-Wheeler, picked up the telephone to call 911, but, when Mr. Wheeler threatened to kill her, did not make the call. Instead, she left the house. Although she considered driving to a police station to report the incident, she did not because of fear of what Mr. Wheeler would do to her. Eventually she drove to a nearby store, after picking up S.M., and had him go into the store to purchase a disposable camera. She then had S.M. take photographs, which were admitted into evidence, of the injuries caused by Mr. Wheeler. Ms. Wilson-Wheeler eventually returned to the family home. She spent the night in her daughter's room. The next day, Ms. Wilson-Wheeler attempted to discuss family finances with Mr. Wheeler, who was lifting weights in the garage. Mr. Wheeler became angry, cursed her, and repeated his threat to kill her. On June 18, 2003, after a dispute over the telephone, Ms. Wilson-Wheeler told Mr. Wheeler that she was going to report the incident. She was later told by her son that police officers were at the house with Mr. Wheeler. She immediately left her place of employment and went to the Pembroke Pines Police Department where she reported the June 11th incident. On June 19, 2003, Ms. Wilson-Wheeler sought a domestic violence injunction against Mr. Wheeler. The State Attorney's Office charged Mr. Wheeler in Broward County Court Case No. 03-21011MM10A with criminal misdemeanor battery based upon the events of June 11, 2003. On December 2, 2004, a jury returned a verdict finding Mr. Wheeler guilty of committing the criminal misdemeanor battery he had been charged with. Adjudication was withheld, and Mr. Wheeler was sentenced to a term of probation. On December 29, 2004, Mr. Wheeler resigned from employment with the Hollywood Police Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission finding that Joe L. Wheeler, violated Sections 943.13(7), and 943.1395(7) Florida Statutes (2003); dismissing the allegation that he violated Section 943.1395(6); and revoking his certification. DONE AND ENTERED this 8th day of November, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2006. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joe L. Wheeler Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether it is in the public interest to place Petitioners, Booz-Allen and Hamilton, Inc., on the State of Florida Convicted Vendor List maintained by Respondent, State of Florida Department of Management Services (the Department) Section 287.133, Florida Statutes (Supp. 1996).
Findings Of Fact The parties stipulated to the facts, as follows: On August 19, 1993, Petitioner was convicted of the commission of a public entity crime as defined within subsection 287.133(1)(g), Florida Statutes. Petitioner pled guilty in the U.S. District Court for the Middle District of North Carolina to two counts of filing false claims in violation of 18 U.S.C. section 287. The conviction related to time charging irregularities on two subcontracts to the United States Environmental Protection Agency. On February 25, 1994, Petitioner properly reported this conviction in its proposal to the Lee County Board of Commissioners. At the time the plea was entered, Petitioner paid to the United States $1,638,000. This included a $1,000,000 criminal fine, and $488,000 in civil damages, and $150,000 to reimburse EPA’s Office of the Inspector General for the costs of the investigation. The government estimated that the amount of improper charges was approximately $200,000. Petitioner’s cooperation with the EPA included voluntarily providing a wide array of information to EPA. Employees from Petitioner’s Finance and Contracts Department met with EPA investigators and auditors to explain Petitioner’s accounting system. Petitioner assisted EPA by making employees available for interviews. Petitioner voluntarily provided documents and other information to EPA. Petitioner fully cooperated with the Department of Management Services in connection with its investigation initiated pursuant to Section 287.133, Florida Statutes. Petitioner provided information as requested. No other persons or affiliates were charged with public entity crimes in relation to these matters. As a responsible government contractor, Petitioner has taken steps to prevent actions like those that formed the basis for its guilty plea from recurring. These steps and the ethical history of the company are listed in the stipulation and settlement agreement attached as Appendix A and are incorporated herein. Petitioner properly reported its plea to the Lee County Board of Commissioners and provided additional, extensive information concerning its guilty plea and related matters to the Respondent on April 5, 1994 and June 23, 1995. Petitioner’s presence in the market adds to competition in Florida markets for the transportation and consulting in solving state/public sector problems and in implementing their solutions. Petitioner’s commercial freight practice is the foremost management consultant to port authorities in the United States. Petitioner’s depth of knowledge and understanding of port operations, management, and planning have made Petitioner the consultant of choice to port authorities throughout the country. Specific projects are outlined in the stipulation and settlement agreement and are incorporated herein. In addition, Petitioner, due to its over 80 years of experience in both public and private sector (including Florida), can provide a broad perspective on solving state/public sector problems and in implementing their solutions in areas including law enforcement, systems integration and health care. Petitioner has a long history of providing service to the communities in which it works. Again specific instances of community service are referenced in the stipulation and settlement agreement and are incorporated herein.
The Issue The issue in this case is whether the Department of Health and Rehabilitative Services improperly awarded a contract to National Health Laboratories, Inc. for the reasons set forth in the petition.
Findings Of Fact By Invitation to Bid mailed March 26, 1993 (ITB), the Dade County Public Health Unit requested bids on an annual contract for the performance of clinical laboratory test services. The Dade County Public Health Unit is under the Department of Health and Rehabilitative Services (HRS). The contracting agency shall hereafter be referred to as HRS. The ITB called for the opening of bids on April 12, 1993. Six bids were timely submitted. The apparent low bid was submitted by National Health Laboratories, Inc. (NHL). The NHL bid was $202,271. The second low bid was submitted by Continental Medical Laboratory, Inc. (CML). The CML bid was $241,100. HRS issued a notice of intent to award the contract to NHL. CML timely protested. There is no issue as to the responsiveness of the CML bid. The only issue as to the responsiveness of the NHL bid concerns the matters raised by CML. CML's petition alleges that the bid of NHL was defective because the Sworn Statement Pursuant to Section 287.133(3)(a), Florida Statutes, on Public Entity Crimes (Public Entity Crime Affidavit) was incomplete, an agreement attached to the Public Entity Crime Affidavit did not relieve NHL from disqualification concerning CHAMPUS fraud, and NHL should be disqualified from bidding because it failed timely to inform the Department of Management Services of the company's conviction of a public entity crime. Paragraph 10 of the General Conditions of the ITB allows HRS to "waive any minor irregularity or technicality in bids received." However, special conditions provide, in part: PUBLIC ENTITY CRIMES Any person submitting a bid or proposal in response to this invitation must execute the enclosed [Public Entity Affidavit], including proper check(s), in the space(s) provided, and enclose it with the bid/proposal. Failure to complete this form in every detail and submit it with your proposal will result in immediate disqualification of your bid. The Public Entity Crime Affidavit completed by NHL and submitted with its bid was executed and notarized on April 9, 1993. Paragraph six of the form affidavit states: Based on information and belief, the statement which I have marked below is true in relation to the entity submitting this sworn statement. [Indicate which statement applies.] Neither the entity submitting this sworn statement, nor any of its officers, directors, executives, partners, shareholders, employees, members, or agents who are active in the management of the entity, nor any affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, employees, members, or agents who are active in the management of the entity, or an affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, employees, members or agents who are active in the management of the entity, or an affiliate of an entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. However, there has been a subsequent proceeding before a Hearing Officer of the State of Florida, Division of Administrative Hearings and the Final Order entered by the Hearing Officer determined that it was not in the public interest to place the entity submitting this sworn statement on the convicted vendor list. [attach a copy of the final order] The next paragraph of the Public Entity Crime Affidavit form states: I UNDERSTAND THAT THE SUBMISSION OF THIS FORM TO THE CONTRACTING OFFICER FOR THE PUBLIC ENTITY IDENTIFIED IN PARAGRAPH I (ONE) ABOVE IS FOR THAT PUBLIC ENTITY ONLY AND, THAT THIS FORM IS VALID THROUGH DECEMBER 31 OF THE CALENDAR YEAR IN WHICH IT IS FILED. I ALSO UNDERSTAND THAT I AM REQUIRED TO INFORM THE PUBLIC ENTITY PRIOR TO ENTERING INTO A CONTRACT IN EXCESS OF THE THRESHOLD AMOUNT PROVIDED IN SECTION 287.017, FLORIDA STATUTES FOR CATEGORY TWO OF ANY CHANGE IN THE INFORMATION CONTAINED IN THIS FORM. In completing the Public Entity Crime Affidavit, NHL penned in, just over the second alternative that discloses a conviction, "See Attached." The attachment was a copy of an Agreement dated December 31, 1992, between NHL and the "state of Florida" (Settlement Agreement). The agreement was executed by an NHL officer and the Director, Medicaid Fraud Control Unit of the Auditor General Office. The Auditor General's Office is not part of the Department of Management Services. The Settlement Agreement concerns invoices from NHL to the Florida Medicaid program for certain cholesterol and iron tests from January 1, 1987, through November 30, 1992. The Settlement Agreement requires NHL to pay as restitution to the State of Florida $1,470,917. In return, the state of Florida, for itself and on behalf of its agents and assigns, will release and forever discharge NHL, its current or former officers, directors, employees, agents, shareholders, affiliates, assigns and successors from any and all claims, actions, demands or causes of action including penalties or interest against any of them, either civil or criminal, as regards Medicaid reimbursement [for certain cholesterol and iron tests] between January 1, 1987 and November 30, 1992, except that nothing contained in this Settlement Agreement shall preclude the state Medicaid program from seeking recoupment of payments made [for certain cholesterol tests] during the period covered by this Settlement Agreement, subject to the understanding that NHL will contest any such recoupment action on the grounds that such payments were appropriate. The Settlement Agreement also provides: The state of Florida agrees that neither the Settlement Agreement nor any federal criminal conviction or other sanction of the corporation or a current or former officer or employee of NHL as regards claims for Medicaid reimbursement [for certain cholesterol and iron tests] [b]etween January 1, 1987 and November 30, 1992 will be the basis for a state exclusion of NHL from the Florida Medicaid program. NHL is a company that provides laboratory testing nationally and receives payment for many of its services from government sources, such as Medicaid, Medicare, or CHAMPUS. CHAMPUS is the Civilian Health and Medical Program of the Uniformed Services. During the period of 1987 through 1992, NHL supplied certain cholesterol and iron testing, in addition to that specifically requested by the health-care provider, at little or no cost to the health-care provider. But NHL invoiced various government payors at higher rates. On December 18, 1992, NHL entered guilty pleas to two counts of criminal fraud involving these practices as they concern the CHAMPUS program. These pleas were the bases of a conviction and sentence that included a criminal fine of $1,000,000. One or two former officers entered guilty pleas to charges of criminal fraud involving these practices as they concern the Medicaid program. As part of the settlement, NHL paid the United States the sum of $100,000,000. At the same time, NHL was negotiating with various states, including Florida, with respect to the above-described billing practices. On December 8, 1992, the Director of the Medicaid Fraud Control Unit in the Florida Office of the Auditor General wrote a letter to NHL confirming a proposed settlement. The conditions of the settlement are incorporated in the above- described Settlement Agreement. On December 17, 1992, the Assistant Secretary for Medicaid in HRS mailed a letter to NHL agreeing that HRS would not take administrative action for the above-described cholesterol and iron claims submitted for reimbursement by NHL to the Florida Medicaid program. NHL did not inform the Department of Management Services of the guilty plea, conviction, and $1,000,000 criminal fine. However, based probably on information received in early February 1993 from another governmental entity in Florida, the Department of Management Services, on February 8, 1993, sent a letter to NHL advising it that the Department had received information that NHL had been convicted of a public entity crime and requesting copies of the charges and final court action. NHL complied and the Department's investigation is continuing. On February 18, 1993, HRS Deputy Secretary for Health, sent a memorandum to all of the County Public Health Units directors and administrators advising them of concerns about laboratory fraud and attaching a recent report concerning the NHL case. The report described the NHL guilty pleas, conviction, and sentencing, as well as the business practices that led to the prosecution. By memorandum dated March 18, 1993, HRS Assistant Secretary for Medicaid informed HRS Depute Secretary for Health that the Auditor General had entered into the Settlement Agreement. The memorandum states that, on December 17, 1992, the Assistant Secretary signed an agreement with NHL not to terminate it from the Florida Medicaid program, which was the "same treatment afforded many other providers--including [County Public Health Units]--who overbilled the Medicaid program. The Assistant Secretary's memorandum describes the settlement as requiring NHL to make "full restitution," although the $1.4 million in restitution involves only the iron test and the State of Florida and NHL may still litigate whether any reimbursement is due for the cholesterol tests. The failure of NHL to check the second alternative on the Public Entity Crime Affidavit did not confer an economic advantage on NHL in the subject procurement. The material attached to the affidavit sufficiently informed HRS of the criminal conviction of NHL. Likewise, the omission of any mention of CHAMPUS claims in Paragraphs two and three of the Settlement Agreement did not confer any economic advantage on NHL in the procurement. The purpose of mentioning only Medicaid in the Settlement Agreement is that Florida has no jurisdiction over the CHAMPUS program. NHL was concerned only that Florida not terminate NHL's participation in the program over which Florida had jurisdiction--the Medicaid program. These references to "Medicaid reimbursement" are merely descriptive and are not intended to limit the scope of the exoneration purportedly effectuated in the Settlement Agreement.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order dismissing the bid protest of Continental Medical Laboratory, Inc. ENTERED on August 24, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3951BID Treatment Accorded Proposed Findings of Respondent and Intervenor 1-8 and 11: adopted or adopted in substance. 9-10 and 12-15: rejected as subordinate. 16-31: adopted or adopted in substance. 32-37: rejected as subordinate and irrelevant. 38-43 and 45-48: rejected as irrelevant and legal argument. 44: adopted. 49-50: adopted as to absence of material variations. 51: rejected as subordinate and recitation of evidence. Treatment Accorded Proposed Findings of Petitioner 1-14 and 16-17: adopted or adopted in substance. 15: rejected as legal argument and unsupported by the appropriate weight of the evidence. 18-21: rejected as subordinate, repetitious, and legal argument. 22-27: adopted in substance. 28: rejected as irrelevant. 29 (first sentence): rejected as repetitious and irrelevant. 29 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 30: adopted, but the period of the delay of DMS review in this case was too short to make any difference. 31: rejected as unsupported by the appropriate weight of the evidence with respect to a delay of such a short duration. 32: rejected as legal argument inviting a remedy far in excess of any remedy provided for or envisioned by 287.133. 33: rejected as legal argument inviting a remedy far in excess of any remedy provided for or envisioned by 287.133, at least under the facts of the present case. 34: rejected as irrelevant. 35: rejected as legal argument and unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Geoffrey Kirk Adorno & Zeder, P.A. 2601 S. Bayshore Dr., Ste. 1600 Miami, Florida 33133 Morton Laitner, District Counsel District 11 Legal Office 401 NW 2d Ave., Ste. N-1014 Miami, Florida 33128 Thomas F. Panza Seann Michael Frazier Panza, Maurer 3081 E. Commercial Blvd., Ste. 200 Ft. Lauderdale, Florida 33308 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The United States Department of Justice, Office of Juvenile Justice and Delinquency Prevention, is authorized by the Juvenile Justice and Delinquency Prevention Act of 1974, as amended, to provide monetary grants to states which can then provide grants and contracts to public and private agencies for education, training, research, prevention, diversion, treatment, and rehabilitation programs in the area of juvenile delinquency and programs to improve the juvenile justice system. Respondent has been designated the state planning agency responsible for the administration and implementation of Florida's programs pursuant to the federal Act. Respondent administers this program with the guidance of the Governor's Juvenile Justice and Delinquency Prevention Advisory Committee. The federal Act requires that at least 66 2/3% of the funds received by a state must be "passed through" to (1) units of general local government or combinations thereof; (2) programs of local private agencies to the extent such programs are consistent with the State Plan, except that direct funding of any local private agency by a state shall be permitted only if such agency requests such funding after it has applied for and been denied funding by any unit of general local government or combination thereof; or (3) programs of Indian tribes that perform law enforcement functions. The other 33 1/3% of the funds may be retained by the state, may be used to pay administrative and planning expenses, or may, at the discretion of the state, be awarded to any qualified applicant. Florida has chosen to "pass through" 82% of the federal funding instead of the 66 2/3% required by federal law. Florida uses the remainder of the funds (18%) to pay planning and administrative expenses. Respondent determined that since it would treat all of the grants as "pass through" money, proof of denial of local funding would be required of all applicants for funding except for applicants who were governmental agencies. Accordingly, the same criteria would be applied to all entities seeking funding. In preparation for announcing the instant request for proposals, Respondent conducted workshops around the state. A representative of Petitioner attended the workshop conducted on August 9, 1991, in West Palm Beach, Florida. Persons attending the workshop were permitted to ask questions regarding the forthcoming request for proposals and regarding proposals to be submitted in response thereto. The Department's request for proposals was released on September 9, and a copy was mailed to Petitioner on that date. The request for proposals established a deadline of October 4, 1991, for receipt of written questions concerning the request for proposals and a deadline of October 31, 1991, for receipt of all proposals submitted pursuant to the request for proposals. Page 9 of the request for proposals specifically set forth the procedures and deadlines by which any adversely affected person or firm could file a protest of either the specifications in the request for proposals or the subsequent award of grants. Section X on page 12 of the request for proposals reserved to the Department the right to reject any and all proposals and further provided that ". . . an application shall not be considered or scored if the application . . . [d]oes not contain evidence of a denial of local funding . . . (Governmental agencies are exempt) . . . ." Similarly, Section Z on page 12 of the request for proposals sets forth that all public and private agencies are eligible to receive awards and further provides on page 13 of the request for proposals as follows: 2. Pursuant to 42 U.S.C. Section 5633 (a)(5)(b), local private agencies must submit evidence that they have requested and have been denied funding from any units of general local government or combinations thereof. Such evidence shall be either a certified copy of meeting minutes reflecting a request and denial of funds within the current budget cycle or a letter of denial of funds reflecting such action or a letter from a County Administrator or Manager of a Municipality indicating the unavailability of funds. Failure to submit evidence of denial of local funding shall make the applicant ineligible for funding. Governmental agencies are not required to comply with this requirement. Similarly, Section V on page 19 of the request for proposals provides as follows: Proof of Denial of Funding (Non-Governmental Agencies Only) Pursuant to 42 U.S.C. Section 5633(a)(5)(b), local private agencies must submit evidence that they have requested and have been denied funding from any units of general local government or combinations thereof. Such evidence shall be either a certified copy of minutes of meetings reflecting a request and denial of funds within the current budget cycle or a letter of denial of funds reflecting such action or a letter from a County Administrator or Manager of a Municipality indicating the unavailability of funds. Failure to submit evidence of denial of local funding shall make the applicant ineligible for funding. Similarly, Appendix D to the request for proposals is the Essential Requirement Checklist which provides, introductorily, as follows: Applicants must indicate the application page where the required essential documents are found and must initial the checklist to verify that they have reviewed the application and have included the essential documents. Failure to complete and include any of the required essential documents will result in elimination of the application from further consideration for funding. Item numbered 6 on the Essential Requirement Checklist calls for the inclusion of evidence of denial of local funding, refers the reader to Section III, Z, where that requirement is discussed, and further states "Governmental Agencies are exempt." During the time period for submission of written questions regarding any of the terms contained in the request for proposals, the Department received seven written questions. Three of those questions involved the requirement for submitting proof of denial of local funding. Copies of the written answers to those questions were provided to all other known interested persons. Petitioner received copies of those letters. The Department's answers contained in those three letters pointed out the requirement that local private agencies submit evidence that they had requested and been denied funding from any unit of general local government or combination thereof because the funds to be awarded are not to be utilized to supplant local government funds. The letters further pointed out the minimum requirement for establishing proof of denial by submitting a certified copy of minutes of meetings or a letter from a county or municipal administrator or manager. Examples of appropriate units of local government were provided, with a caveat that the Department was attempting to be as flexible as possible. Lastly, the Department's written answers specifically included the following information: ". . . any nongovernmental applicant which does not supply the denial of funding documentation with their application will be rejected at the pre-screening phase. The U.S. Department of Justice has made it very clear that there are no exceptions to this condition." The Department received Petitioner's proposal on October 31, 1991, the last day for timely filing such proposals. According to its proposal, Youth Crime Watch of America is a nonprofit organization. Petitioner's program is patterned on the citizens crime watch program but is based in the school setting. Petitioner performs two main functions. First, school systems contact Petitioner, which then provides information and training for the setting up of a youth crime watch program in that school system's schools. Second, Petitioner co-sponsors an annual conference with the National Crime Prevention Council of Washington, D.C. Petitioner's proposal sought funds to hire a state coordinator, to hire a conference coordinator, and to pay for printing, travel, and conference expenses. Petitioner's proposal includes the Essential Requirement Checklist. Petitioner checked item numbered 6 to signify that evidence of denial of local funding was included, and stated that such evidence could be found on pages 37 and 38 of Petitioner's proposal. Petitioner's executive director initialled that entry to verify that the application had been reviewed and the essential documents had been included. Page 37 of Petitioner's proposal was a copy of a letter from the Florida Department of Education, a state agency, denying Petitioner's request for funding. Page 38 was a copy of a letter from the United States Department of Justice, a federal agency, denying funding for a proposal submitted by Petitioner. No other proof of denial of local funding was submitted by Petitioner, and, therefore, no evidence of denial of local funding was included in Petitioner's proposal. Page 21 of Petitioner's proposal contains a section entitled "Denial of Funding" which reads as follows: Due to the unique position of the Youth Crime Watch Program of America and it's [sic] affiliates, local funding denial stipulations do not apply for this grant application. All local funding goes directly to the local affiliates. YCWA has received small local contributions designated for use in the production of the Annual Conference. Those contributions are made at the time of the Conference and do not impact the General Operating Budget. YCWA did, however, recently apply for Federal Office of Juvenile Justice & Delinquency Prevention Funding and was denied. A copy of that denial is included in the appendices of this application. Accordingly, the text of Petitioner's proposal advised Respondent both that Respondent's local funding denial requirement did not apply to the Petitioner and that Petitioner had received small local contributions. The word "statewide" appears only one time in Petitioner's proposal. It is found on page 28 of the 42-page proposal in the job description for the National Youth Crime Prevention Conference coordinator and refers to student scholarships. However, on page 7 of Petitioner's proposal the text explains that Petitioner has brought its program to school districts in 34 counties in the state of Florida and that the annual conference which Petitioner co-sponsors is attended by persons from around the United States and from around the world. The Department employee assigned as the contact person for this particular grant program reviewed all proposals received in response to the Department's request for proposals. Specifically, she reviewed the Essential Requirement Checklist to verify that each proposal contained all essential documents. She determined that Petitioner's proposal failed to contain evidence of denial of local funding and that Petitioner's proposal further indicated that Petitioner had received some form of local funding. Petitioner's proposal was therefore disqualified and was not reviewed by the screening committee and then by the Governor's Juvenile Justice and Delinquency Prevention Advisory Committee. That Advisory Committee met on January 8, 1992, to review the recommendations of the screening committee and to make final funding decisions. By letter dated January 24, 1992, Petitioner was advised that its proposal was not considered because it failed to meet the essential requirement of proof of denial of local funding. Petitioner received that letter on January 29, 1992. By letter dated January 31, 1992, Petitioner advised Respondent that it intended to file a written protest. By letter dated February 6, 1992, Petitioner advised Respondent of the specific basis for the protest. In addition to Petitioner, two other applicants were rejected for lack of proof of denial of local funding. The State Plan defines local private agency as a private nonprofit agency or organization that provides program services within an identifiable unit or combination of units of general local government. The parties have stipulated that Petitioner was an eligible applicant to apply for a grant under the request for proposals, that Petitioner's request for a hearing was timely, and that Respondent did not act fraudulently or dishonestly in removing Petitioner's proposal from consideration by the screening committee and then by the Governor's Advisory Committee.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Petitioner's protest. DONE and ENTERED this 23rd day of April, 1992, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-3 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4-6 have been rejected as being unnecessary to the issues involved herein. Petitioner's proposed finding of fact numbered 7 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel, a conclusion of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 1-11 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: John Lisk, Esquire 3675 Justison Road Coconut Grove, Florida 33133 Linda Harris, Deputy General Counsel Department of Health and Rehabilitative Services Building One, Room 407 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue presented here concerns the question of the entitlement of Petitioner to be granted certification as a law enforcement officer under the provisions of Section 943.13, Florida Statutes, and Chapter 11B-16, Florida Administrative Code. In particular, the matter to be determined deals with the propriety of the denial of certification in the face of an arrest and conviction of Petitioner for a felony offense, which allegedly would cause the Petitioner to be rejected as an applicant for certification. The denial of licensure is purportedly in keeping with the dictates of Subsection 943.13(4), Florida Statutes.
Findings Of Fact Petitioner had made application to be certified as a law enforcement officer in the State of Florida, in keeping with the terms and conditions of Subsection 943.13, Florida Statutes. See Respondent's Exhibit No. 1, admitted into evidence. Petitioner has completed all administrative requirements for such licensure; however, he has been denied licensure based upon his arrest, a finding of guilt and judgment and sentence related to a charge of conspiracy to transport a stolen vehicle in Interstate Commerce and Foreign Commerce from New York, New York, to Miami, Florida, and from Miami, Florida, to Havana, Cuba, knowing that the motor vehicle had been stolen. This offense related to Title XVIII, Sections 2312 and 2371, U.S.C., in an action in the United States District Court for the Southern District of Florida, Case No. 8519-M-CR. For these matters the Petitioner was imprisoned for a period of two (2) years on two (2) counts of the indictment, Counts 3 and 6. The sentence in those counts was to run concurrently. See Respondent's Exhibit No. 2, admitted into evidence. Petitioner has had his civil rights restored in the State of Florida, together with his rights to own, possess and use a firearm. Federal firearms disability arising from the felony conviction have also been set aside. See Petitioner's Exhibit Nos. 1 through 3, respectively, admitted into evidence.
The Issue Did Petitioner prove rehabilitation from her guilty plea to a charge of burglary, which disqualified from working with vulnerable adults and children, by clear and convincing evidence? If she did, is the intended denial of Petitioner’s request for an exemption from disqualification by Respondent, Agency for Persons with Disabilities (Agency) an abuse of discretion?
Findings Of Fact Petitioner seeks employment with Good Wheels, Inc. Good Wheels serves people with disabilities. As its employee, Petitioner would be directly providing services to people with disabilities. The clients that Good Wheels serves are vulnerable individuals. They are people with intellectual disabilities, autism, spina bifida, Prader-Willi syndrome, cerebral palsy, Down syndrome, and/or Phelan-McDermid Syndrome. § 393.063(12), Fla. Stat. (2016).1/ They are vulnerable people, more at risk for abuse or neglect than the general population because of intellectual deficits or physical disabilities. Consequently, employment as a direct service provider for them is a position of special trust. Because Petitioner wants to work as a direct service provider, the law requires her to comply with background screening requirements. Petitioner’s background screening identified a guilty plea to a felony that disqualified her from working with vulnerable individuals, including people with disabilities. The disqualifying offense is burglary, a violation of section 810.02(3), Florida Statutes (1994). Petitioner seeks an exemption from the disqualification, as provided for by sections 393.0655(2) and 435.07, Florida Statutes. Petitioner completed an anger management class and satisfied all other obligations the court imposed upon her in the burglary case. Petitioner’s criminal history includes the following offenses, which are not of themselves disqualifying offenses: an arrest for aggravated battery on September 2, 1994, a violation of section 784.045, Florida Statutes (1994); an arrest for aggravated assault with a deadly weapon and battery (misdemeanor) on September 4, 1994, violations of sections 784.021(1)(a) and 784.03(1)(a)1., Florida Statutes (1994) (the aggravated assault charge was reduced to a second count of battery; Petitioner was adjudicated guilty of this offense); an arrest for battery in January 1995, a violation of section 784.03 Florida Statutes (1994); an arrest for alteration of a tag by any means and driving with no valid driver's license in February 2001, violations of sections 322.03 and 320.061, Florida Statutes (2001); and an arrest for aggravated battery with a deadly weapon and battery in April 2002, violations of sections 784.045(1)(a)(2) and 784.03(1) Florida Statutes. The disqualifying burglary offense arose from Petitioner’s belief that the victim stole rent money from Petitioner’s glove box. A friend suggested that Petitioner break into the victim’s house to recover the money. She did and was caught. This offense and most of the non-disqualifying offenses occurred when Petitioner was young. The incidents involved drinking alcohol. Many involved an inability to control her temper and a readiness to resort to violence to solve problems. One example is the 2002 aggravated battery charge. An argument with Petitioner’s girlfriend escalated from screaming to shoving to Petitioner breaking a beer bottle on her girlfriend’s head. This Petitioner characterized as a “push & shove slap fight” with no life threatening injuries. The aggravated battery charge in September 2, 1994, is another example. It arose from a dispute about Petitioner’s girlfriend’s failure to repay money loaned by the victim. The person who loaned the money threatened to scratch the girlfriend and infect her with a fatal disease. Petitioner and her girlfriend began to fight with the victim. During the fight Petitioner took a knife from the victim and stabbed him. Petitioner no longer uses alcohol. Her last offense occurred in 2002. She accepts responsibility for her actions and is remorseful for them. But she minimizes them and the injuries they caused somewhat. People who know Petitioner vouch for her. Someone who has known Petitioner five years attests to her work ethic and dedication. She described Petitioner as a “dynamic worker who will go the extra mile on all projects.” A chronically ill person for whom Petitioner has been a primary caregiver for more than three years praises her. She describes her as compassionate and positive. She emphasizes Petitioner’s ability to stay calm and cool even when the ill person devolved into “terrible rages.” Petitioner has satisfied the requirements to qualify for the “Federal Bonding Program” offered by a company that offers employee bonds from Travelers Property Casualty Insurance Company. The record does not establish what the requirements to qualify for a bond are. Petitioner’s employer from February 27, 2006, through May 10, 2014, MV Transportation, has repeatedly recognized her achievements. It awarded her a certificate of excellence as Division Operator of the Quarter in recognition of valuable contributions to safety excellence and customer service. In 2012 Petitioner was paratransit driver of the year. In 2013 MV’s Senior Vice President of Safety commended Petitioner for her six years of accident-free driving and commitment to safety. The information in paragraphs 10 through 13 comes from documents, not witness testimony. Consequently, the statements are hearsay. Their authors were not subject to cross examination by the Agency to test any bias of the authors, the distinctness of their memories, or the basis of their conclusions. Petitioner attends church regularly and participates in church activities. She credits her faith for the motivation and resolve to end the pattern of harmful and illegal behavior demonstrated in earlier years. Petitioner also participates in a motorcycle club that conducts events to raise funds for community service.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter its final order denying Petitioner’s exemption request. DONE AND ENTERED this 24th day of February, 2017, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2017.
